The Smallest Minority on earth is the individual. Those who deny individual rights cannot claim to be defenders of minorities. - Ayn Rand

Liberty is an inherently offensive lifestyle. Living in a free society guarantees that each one of us will see our most cherished principles and beliefs questioned and in some cases mocked. That psychic discomfort is the price we pay for basic civic peace. It's worth it. It's a pragmatic principle. Defend everyone else's rights, because if you don't there is no one to defend yours. --MaxedOutMama

The most glaring example of the cognitive dissonance on the left is the concept that human beings are inherently good, yet at the same time cannot be trusted with any kind of weapon, unless the magic fairy dust of government authority gets sprinkled upon them.--Moshe Ben-David

The cult of the left believes that it is engaged in a great apocalyptic battle with corporations and industrialists for the ownership of the unthinking masses. Its acolytes see themselves as the individuals who have been "liberated" to think for themselves. They make choices. You however are just a member of the unthinking masses. You are not really a person, but only respond to the agendas of your corporate overlords. If you eat too much, it's because corporations make you eat. If you kill, it's because corporations encourage you to buy guns. You are not an individual. You are a social problem. --Sultan Knish

All politics in this country now is just dress rehearsal for civil war. --Billy Beck

SANTA ROSA - A boy in his mid-teens learned Wednesday afternoon that it is not a good idea to try to rob a former U.S. Marine at knifepoint, even if the former Marine is 84 years old, police said today.

Santa Rosa police Sgt. Steve Bair said that's what happened around 2 p.m. in the 1600 block of Fourth Street. The elderly man was walking with a grocery bag in each arm when the boy approached him with a large knife, Bair said.

The boy said, "Old man, give me your wallet or I'll cut you," Bair said. The man told the boy he was a former Marine who fought in three wars and had been threatened with knives and bayonets, Bair said.

The man then put his bags on the ground and told the boy that if he stepped closer he would be sorry. When the boy stepped closer, the man kicked him in the groin, knocking him to the sidewalk, Bair said. The ex-Marine picked up his grocery bags and walked home, leaving the boy doubled over, Bair said.

The man reported the attempted robbery to police 45 minutes later.

Bair said the teen is described only as 15 or 16 years old. Anyone with information is asked to call the Police Department.

Thursday, March 27, 2008

Quote of the Day.

(A)s a rule, people don't want to read classics, not even if they're free. If somehow you were able pry them away from their televisions long enough to read the book aloud to them, I'm convinced that before long they would stick their fingers in their ears and start writhing as if they were in agony, screaming, "The thinking! It hurts! My brain...all 'splodey! Oh nooo!"

And yet, they vote. (Which explains the continuing decline in the quality of our elected officials.)

This QotD brought to you by Breda. There's another good quote in that one, by Ray Bradbury.

Posting will remain light. (I'm posting this one from work - before normal working hours, of course!) Looks like I will have to wait until whatever is causing the problem becomes permanent so a service tech can figure it out. They, of course, never can be at the house when the link is down.

I'm frankly surprised that ABCNNBCBS didn't have a news truck on the lawn of the lucky mom in time for the early AM news cycle.- Tam, on the media's "commemoration" of the 4.000th soldier to die in Iraq.

Thomas Girsch, guest-posting at SayUncle (and crossposting at LeanLeft) finds this amusing, apparently, and links to a post at Obsidian Wings on the topic. I read the piece. Written by "Publius," I for one have to take extreme exception. He (or she, you never can really tell on the internet) states:

(T)he meaning of constitutional text isn't self-evident. To be blunt, the Constitution means what the Court ultimately says it means. We can say "First Amendment" all we want, but it's ultimately the Court that defines the scope and meaning of the "freedom of speech" text as applied to various types of circumstances (e.g., Bong Hitz 4 Jesus, crowded theater, libel, etc.). Now maybe you like this, and maybe you don't. But that's the way things have been for some time.

In this sense, the "individual rights" interpretation of the Second Amendment is absolutely a "new" constitutional right. Courts have traditionally adopted a "collective/militia" interpretation. Maybe that's good, maybe it ain't. But that's been the traditional judicial interpretation.

That depends on just how far back you want to go in your research into "judicial interpretation." It would appear that depth of inquiry only goes back as far as you can find (or interpret, or invent) the finding you want. If you go too far, well then, the decisions must have been flawed or otherwise discountable.

I've been through this before with the "honorable opposition."

The earliest case in which the Supreme Court discusses what are our individual rights as citizens is Dred Scott v. Sanford in 1856 - a case in which seven of the nine Justices decided that blacks could not be citizens - slave or free - because citizenship:

"would give to persons of the negro race, who were recognised as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went."

In that I count: freedom of speech, freedom of assembly, freedom from unreasonable search and seizure, and the rights to keepand bear armsoutside of any mention of militia service.

This was followed by U.S. v. Cruikshank in 1875, which declared that the right the Second Amendment protected was "that of 'bearing arms for a lawful purpose.' " Not only that, but that right "is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence." No, in that case the Supreme Court declared that (and Alan Gura made use of) the Second Amendment prevented only the Federal government from passing laws infringing on it.

D.C. is under Federal law, not State.

But Cruikshank made it OK for states to violate this pre-existing right to "bear arms for a lawful purpose." Again, no mention of militia service was made. Apparently the 1875 Supreme Court hadn't yet had a chance to study up on the (1868) 14th Amendment's first paragraph, the second sentence of which is:

No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States;

You know, the "privileges or immunities" listed by the Court in Dred Scott, one of which was "to keep and carry arms" wherever we go?

Third, in Presser v. Illinois of 1886, the Supreme Court found it was acceptable to forbid private militias, using Cruikshank as precedent, but - most fascinating - that court stated not once but twice that:

(I)n view of the fact that all citizens capable of bearing arms constitute the reserved military force of the national government as well as in view of its general powers, the States cannot prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security.

and:

It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the States, and in view of this prerogative of the general government, as well as of its general powers, the States cannot, even laying the constitutional provision in question out of view, prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the general government.

Yet, we are to believe, the right to arms is a new right, heretofore undeclared and unrecognized by the Supreme Court?

In the Supreme Court cases from which you quote, all individuals who sought protection under the Second Amendment LOST.

Indeed, they did.

I replied:

BINGO! You win the kewpie doll! Let me rephrase your statement a bit more accurately: In the Supreme Court cases from which I quote, the Supreme Court was complicit in violating the right(s) it was tasked to defend.

And the excuse used each and every time? Let me quote Mayor Adrian Fenty:

I want to again emphasize that this case is a public safety case.

"Public Safety." That was the argument the Dred Scott court used to deny citizenship to a whole class of people. Here's the quote again, with one extra line:

(Citizenship) "would give to persons of the negro race, who were recognized as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went. And all of this would be done in the face of the subject race of the same color, both free and slaves, and inevitably producing discontent and insubordination among them, and endangering the peace and safety of the State."

Boy, good thing the Court didn't find in favor of Mr. Scott and his entire race. There might have been a Civil War or something!

As I have said before, the history of the Second Amendment is what has made me an advocate for it. Its legislative and legal history illustrates precisely what happens when judges and legislators "constitutionalize their personal preferences" instead of upholding their oaths to "support and defend the Constitution of the United States."

The Supreme Court has the opportunity to correct 151 years of bad precedent and protect the rights of individual citizens whose rights they've folded, spindled, and mutilated in the name of "public safety."

Long ago, Thomas Jefferson found a quote by Cesare, Marquis of Beccaria in his 1764 treatise On Crime and Punishment so profound that he copied it into his own "Commonplace Book":

Laws that forbid the carrying of arms ... disarm only those who are neither inclined nor determined to commit crimes ... Such laws make things worse for the assaulted and better for the assailants; they serve rather to encourage than to prevent homicides, for an unarmed man may be attacked with greater confidence than an armed man.

Bob Ricker of the astroturf gun-ban er, -control, ah, -safety "organization" American Hunters and Shooters Association, has been dropping by pro-gun blogs and leaving comments. First, one over at Bitter's that piqued SayUncle's ire, and then one at SayUncle's post about it.

Here's the key graph of the first one:

I think it should be clear from my comments here and on other "whacko" blogs that AHSA is reaching out to a more educated, sophisticated and straight thinking hunter and shooter demographic.

And here's his second comment, with his really poor attempt at superiority:

Hey SayUncle- only seven comments to this post? I'm stunned. Of the 30 to 40 million so called NRA members Bitter writes about, you could only find 7 who don't agree with me. How many "whackos" do you represent?

Let me take on, as others have done, his first comment:

"More educated" - I have a BA from the University of Arizona. Granted it's in "General Studies," but the three areas of concentration are Math, Physics and Engineering. It was enough to qualify me (with work experience and recommendations from other licensed engineers) to take the exams necessary to get my own license to practice Electrical Engineering. I took each exam once, and passed.

"Sophisticated" - Boy, you got me there. I don't eat Brie or drink wine (even out of a box!) I can't discuss opera or the theatah, and ballet absolutely bores me to tears. I'm just unsophisticated as all get-out.

"Straight-thinking" - I won't go where Uncle went, but I think if Bob spent some time reading the "Best Of" posts on my left sidebar, he might conclude that my brain works just fine. It has to: I'm an engineer.

"Hunter" - Well, I've been on one deer hunt and one javalina hunt. No joy either time. But hunting is not really my bag. Hunting, to me, is taking your gun for a walk.

"Shooter" - Not as much of a shooter as I'd like to be. All this reading and writing cuts into my time to reload and get out on weekends to shoot. But I have started participating in action matches, and I look forward to burning about 250 rounds of .45ACP a month doing that, plus whatever time I can spare shooting some of my other firearms.

So, the demographic Bob is after is the $10,000+ Perazzi wingshooting set?

Good luck with that, Bob! (I prefer shooting thrown clays with my .30-06 1917 Enfield. It's a bit more of a challenge.)

Perhaps my sixteen regular readers might want to opine over at Uncle's. His post is up to thirty-two replies as I write this.

Thursday, March 20, 2008

You Will Never Find a More Wretched Hive of Scum and Villainy

(I wanted to post this on Tuesday, but illness and work has postponed it until now.) From the press conference held by Mayor Adrian Fenty and the rest of the D.C. team immediately after oral arguments in D.C. v. Heller. Fenty:

I want to again emphasize that this case is public safety case. We have long had a law in the District of Columbia are banned in the city. Thirty years ago, as is the case today, handguns represent a disproportionate number of crimes in the District of Columbia. Everything from homicides to robberies to rapes.

Well then, doesn't that tell you that the BAN DOESN'T WORK?

No, of course not!

The fact that we have had a handgun ban has significantly curtailed the number of violent crimes in the city as evidenced by the fact that violent crime has steadily gone down since the law was enacted.

Yet Mayor Fenty expects us to accept that the handgun ban somehow caused crime rates in D.C. to "steadily decline."

Bullshit.

Here's a page that compares Washington, Arlington, and Alexandria - three cities in very close geographical location, but with vastly different gun laws. In 2005, D.C. (with a handgun ban and a population of 550,000) had 195 homicides. Alexandria, VA (right next door with a population of 130,000 and "shall-issue" concealed-carry) had 3. That's a rate comparison of 35.4/100,000 for D.C. to (carry the one...) 2.3/100,000. But D.C. is supposedly safer because of its gun laws?

That's Fenty's talking point!

As mayor of the District of Columbia, I can attest that the majority of the residents of this city enthusiastically support the laws the council passed in the seventies, and want it to continue in order that crime continues to go down.

I don't think he really gives a damn what the residents of the city think. They very well might support such laws if they are stupid enough to swallow this kind of bilge as "fact."

Next up, Chief of Police, Cathy L. Lanier

I have said many, many times as Police Chief of Washington, D.C. and after policing here in the city for nearly eighteen years, that the issue with handguns to me is very clear: a weapon that is easily concealed, that can be taken inside of schools, inside of churches, inside of government buildings, without anyone's knowledge and be used, uh, and even high-capacity, uh rounds, capacity for a lot of handguns to create massive destruction is something that we don't want in the District of Columbia.

Yet you think a ban will (or has) stopped this? The national homicide rate in 2005 was 5.6/100,000. In D.C. it was 29.1. "But D.C. is a city," you argue. The homicide rate in New York City in 2005 was 6.6. In Boston, 12.9. Orlando, 10.5. Washington, D.C. ranked #13 out of 353 different cities for homicide rate in the U.S. in 2005. but we're supposed to believe that Washington's handgun ban actually keeps handguns out of the hands of criminals there?

I think the reasonable standard of the handgun laws in the District, which are not completely a ban, because there is licensed handguns in the District of Columbia for law enforcement, retired law enforcement, federal law enforcement, security agencies, so it's not a complete ban on handguns,...

No, indeed. It's just a ban for anyone who is not an "only one." It's a ban for anyone who doesn't draw a government paycheck. And Anthony Heller, who is a security guard, and who carries a firearm to protect judges is not allowed to have that same firearm at home to protect himself. He's not "only one" enough. But he was the "only one" enough to have standing in the suit against the City.

Yet you believe this is "reasonable."

...but I think there is some reasonableness on where and when certain types of weapons can and should not be carried. A great example of that was I had to surrender my weapon when I entered the Supreme Court today as Chief of Police of the District of Columbia, and I have no problem with that. I think it's reasonable.

Tell me, Chief; would you think it would be "reasonable" to drop you - in full uniform, sans radio and sidearm - in the middle of the highest-crime district of the city at eleven o'clock at night? Would you feel safe?

So, I think again, as a person who's looked at the other side of the gun violence, and the accidents, and the suicides and all the other things that go along with handgun possession in the District of Columbia, I think the arguments today were very strong on our behalf, and I'm excited and looking forward to the outcome.

Wait, how can there be suicides and accidents and gun violence if there's a ban that's working?

Now Peter Nickles, D.C. Attorney General:

Good morning. In my view the ultimate issue here is can the City impose reasonable regulation on a Constitutional right.

A complete ban on private possession is "reasonable regulation"?

There is no Constitutional right that is not subject to reasonable regulation. I think, in the rebuttal, my colleague, the former Solicitor General Walter Dellinger, he made the ultimate point, and that is do you want a legislature that can deal with the idiosyncracies and the difficulties and the details of this city as distinct from a rural community making policy decisions, or do you want a thousand judges around the country deciding what the Second Amendment means and how it should be regulated?

No, we just want the nine Justices on the Supreme Court bench doing that - finally, after seventy years. We've already tried the "thousand judges around the country" crap.

But I felt the Justices were obviously very interested, it was a very spirited argument and we look forward to the outcome.

I bet you do.

Walter Dellinger:

It was a very interesting and lively Court this morning. Obviously everyone on the Court was interested in debating the great issues of history and Constitutional law. At the end of the day, I think however one resolves those great theoretical and Constitutional issues, we come down to the fact that this is an extremely reasonable law...

If you happen to not live under it, or are protected by "law enforcement, retired law enforcement, federal law enforcement, or security agencies." If you happen to live in a high-crime area and are just Joe or Jane Average, however, it's not so reasonable. Ask David Souter how safe D.C. is.

...because the District of Columbia really thought this through, and they allowed rifles and shotguns - they believe in the right of people to be able to defend their homes.

Outright, blatant, unapologetic LIE #2. Rifles and shotguns are required by law to be kept unloaded, and disassembled or equipped with a trigger lock. A gun in this condition is known as "a club." Alan Gura pointed this out during his oral argument. Amazing how the City somehow magically found this "loophole" in their complete ban on functional firearms in the home.

They singled out handguns because they are as the Chief of Police said, a unique weapon because they are concealable and mobile. They can be taken on busses, on the Metro, into schools, into offices, into government buildings. They were responsible for ninety percent of the armed robberies in the year before this law was enacted and they were used in every single rape in which a weapon was used, it was a handgun, in the year before this law was enacted. The facilitate suicides, they are prone to accidents, and I've talked to the police officers of the District, and they tell me how concerned they are about concealable handguns when they have to execute a warrant or go into a scene at a home of a domestic disturbance and what the risk is to law enforcement.

What? Thirty years after the ban went into effect the police are still concerned?

Wow. That reasonable law has worked wonders, hasn't it?

We think this is a reasonable law...

Did somebody change the dictionary meaning of "reasonable" to "counterproductive" when I wasn't looking? Is this another example of right-wing language manipulation that no one told me about?

...and that the decision ought to be overturned because it sets an absolutist position that if you have a weapon, a kind of weapon that is a lineal descendent of something that was in 1787 you absolutely may not prohibit that weapon at all. And we think, as the Solicitor General of the United States said today that that would put at risk prohibition on machine guns and armor piercing bullets which are a threat to our law enforcement officers. So we hope that when considerations are given to the reasonableness of this law and the alternatives that are allowed for self-defense, that this law will be sustained.

Again, a complete ban is considered a "reasonable restriction"? Hunting ammunition for centerfire rifles will defeat police vests. Should all centerfire rifle ammunition be banned? Is that "reasonable"?

It is in their world.

Vincent Gray, D.C. City Council Chairman:

As the Mayor indicated, homicides in the District of Columbia have gone down.

Sure. There were 188 homicides in D.C. in 1976, and 195 in 2005. That equals "going down" in my book! The population of Washington D.C. has ALSO gone down, from 702, 000 in 1976 to 582,000 in 2005.

Go on, pull my other leg.

In a substantial part because of our ban on handguns.

Then you ought to be able to prove that. But since you're lying from the outset (and no one is calling you on it in public), why bother?

I shudder to think that if we were to have this ban removed what kind of lawless behavior we would see in the District of Columbia.

Ah, yes. Here's the key graph of the whole thing: the "Wild West shootouts," the "blood in the streets" that we always hear about - but never actually GET. D.C. already has "Wild West shootouts" and "blood in the streets." What Mr. Gray fears is that the law abiding citizens will start acting like the criminals who already infest his city.

In short, like most politicians, he doesn't trust his own constituency. (Well, seeing that they're stupid enough to reelect Marion "Bitch set me up!" Barry, maybe he's on to something after all...)

Frankly, if we were able to prohibit importation of guns into the District of Columbia, I think we would be even closer to zero homicides than we are now.

So let's see about chucking the protection against unreasonable searches? Wouldn't that be "reasonable"? I mean, after all, it's a public safety case, right?

This is the semantic equivalent of "Communism hasn't worked because it's never really been tried." The entire island nation of Great Britain has banned handguns. They have no adjoining neighbor nations. You have to either fly, take a ferry or the Chunnel to get there. And their handgun crime has never been higher than it is right now - more than double what it was when all legally registered and licensed guns were turned in by their owners. "If we were able to prohibit importation of guns" is the fantasy that all gun-ban supporters dream of. It's the same as "If pigs could fly." The philosophy cannot be wrong! Do it again, only HARDER!

So I think a strong argument was made today, and I feel confident that when the Court considers this they will consider the District of Columbia's law eminently reasonable.

I hope not. I hope they slap you so hard your momma says "Ouch!" But I don't expect that. I'll settle for an unequivocal definition of the right to arms as an individual one.

I really want to see the Ninth Circuit's Hickman decision overturned.

Fenty, answering questions from the media:

As Mayor of the District of Columbia, more guns anywhere in the District of Columbia is going to lead to more crime, and that is why we stand so steadfastly against the repeal of our handgun ban.

Even though in the entire nation we add 3-4 million firearms per year, but crime has been going down since the early 1990's. Here's a man firmly attached to his fantasy. This is the gun-banner's mantra - guns are the cause of crime. They give off evil brain-altering waves that make people commit violent crime, suicide, and accidents. Guns are talismans of evil!

Dick Heller was asked:

Why does this case mean so much to you? Why was it worth taking to the Supreme Court?

Heller answered:

It's a basic issue of our Constitutional right to our life and self-defense has been violated. And additionally, as a security officer, I carry a gun to protect government officials, but my life isn't worth protecting at home, in their eyes.

That's it in a nutshell.

And here's the Quote of the Day:

The ruling class doesn't care about public safety. Having made it very difficult for States and localities to police themselves, having left ordinary citizens with no choice but to protect themselves as best they can, they now try to take our guns away. In fact they blame us and our guns for crime. This is so wrong that it cannot be an honest mistake. - former U.S. Sen. Malcolm Wallop (R-Wy.)

Not one of the fine representatives of the City of Washington, D.C. could be properly tagged with the word "honest." They wouldn't know honesty if it bit them on the ass.

Monday, March 17, 2008

And So It Begins...

Oral arguments in District of Columbia v. Heller before the Supreme Court of the United States are scheduled for tomorrow morning. Audio of the arguments will be made available shortly afterward so we can hear what everyone said.

There's no telling exactly when the actual decision will be handed down.

I'm betting on a 5-4 decision, but which way? I honestly don't have a clue. It depends on whether there are five intellectually honest judges on that bench, or five willing to "create magnificent legal edifices on elliptical constitutional phrases - or even the white spaces between lines of constitutional text," or to simply "(bury) language that is incontrovertibly there."

Because any decision that upholds the D.C. ban will have to be built on the white spaces between the lines of text, on top of a foundation of the words they will have to bury six feet under.

This decision may not tell us if we will be able to remain, as Rev. Donald Sensing put it sometime back, at least "minimally truly free," but it might very well tell us that such hope is well and truly gone.

Either way, ΜΟΛΩΝ ΛΑΒΕ.

The next überpost will be delayed until after the oral arguments and the resultant commentary.

I just got a letter from the Transportation Security Administration (or "A Security Theater") about my status as a person of interest who cannot print out a boarding pass from home or work. Here's the key graph of the letter I received from a Mr. Jim Kennedy of the DHS Traveler Redress Inquiry Program (TRIP) {and my, aren't they clever with the acronyms!}:

In response to your request, we conducted a review of any applicable records in consultation with other Federal agencies, as appropriate.

That's good. Wouldn't want any inappropriate reviews.

Where it was determined that a correction to records was warranted, these records were modified to address any delay or denial of boarding that you may have experienced as a result of the watch list screening process.

And this means exactly bupkis.

I won't know if my status has changed until the next time I try to print a boarding pass out at home. That should be in May when I fly to Louisville for the 2nd Amendment Blogger Bash and NRA meeting.

Speaking as an utter amateur, I’m worried less about a recession than inflation. I’m worried most about a recession, inflation AND a jolly round of trade wars, coupled with fragile banks, overcapacity, diminished consumer confidence and aggressive messianic collectivism. Something about that smells familiar. I love studying the thirties and forties, but not first hand. - James Lileks, today's Bleat

Does anybody know the actual size and thread pitch on the scope mounting holes of a Remington 700 5R receiver? They look to be #6 screw holes, but the thread pitch appears to be finer than 40 TPI. Or are they 5-40? Or metric? Evolution Gun Works says the screws they ship with their bases are 6-40, but they don't fit the holes in my rifle.

A web search has netted me nada on this question. Even AR15.com has not been helpful.

Sunday, March 16, 2008

Incoming Senate Majority Leader Harry Reid vows to make reform of congressional earmarks a priority of his tenure, arguing that members need to be more transparent when they load pet projects for their districts into federal spending bills.

But last year's huge $286-billion federal transportation bill included a little-noticed slice of pork pushed by Reid that provided benefits not only for the casino town of Laughlin, Nev., but also, possibly, for the senator himself.

Reid called funding for construction of a bridge over the Colorado River, among other projects, "incredibly good news for Nevada" in a news release after passage of the 2005 transportation bill. He didn't mention, though, that just across the river in Arizona, he owns 160 acres of land several miles from proposed bridge sites and that the bridge could add value to his real estate investment.

Reid denies any personal financial interest in his efforts to secure $18 million for a new span connecting Laughlin with Bullhead City, Ariz.

"Sen. Reid's support for the bridge had absolutely nothing to do with property he owns," said Rebecca Kirszner, Reid's communications director. "Sen. Reid supported this project as part of his continuing efforts to move Nevada forward."

But some Bullhead City property owners and local officials say a new bridge will undoubtedly hike land values in an already-booming commuter town, where speculators are snapping up undeveloped land for housing developments and other projects. Experts on congressional spending say Reid's earmark provides yet another sign of the need for reform.

That's not the QotD, but RTWT. Especially the part where Rebecca Kirszner, Reid's communications director says: "With Democrats running Congress, we are in a much better position to achieve real transparency and openness."

THIS is the QotD:

As we look back in history, the Founding Fathers would be cringing to hear people talking about eliminating earmarks. - Sen. Majority Leader Harry Reid, (D-NV) after the overwhelming vote to defeat an anti-earmarking bill

And where do you find this quote? The Associated Press? Reuters? CNN? FOX News? ABCBSNBC? The New York Times?

No. According to Google the only news source reporting this fascinating utterance was The Hill, though National Review Online does have a Tom Coburn response that quotes it.

I cannot help but wonder at just which history books Senate Majority Leader Reid has been reading.

Contrary to the beliefs of some, The Geek with a .45 is one of the blogosphere's better "critical thinkers." I'd suggest you go congratulate him, but his comments are currently turned off due to a problem with Haloscan. (Odd, mine still seem to be working fine.)

Friday, March 14, 2008

Quote of the Day.

In trying to understand bureaucratic infighting, you must grasp: (1) political appointees are a tiny, tiny oil film atop the ocean of career people. Esp. at Justice. (2) They often have no experience at all, and are dependent upon what their subordinates tell them. - David Hardy, Column on Heller and the conflict within DoJ

Bear in mind, this is largely true also of the freshly-elected, which is why term-limits aren't the panacea they otherwise would appear to be. Senators, Congresscritters, and elected vermin of all types come and go, but the bureaucracy lives on. And if you don't properly fill out the form 1934 stroke seven B and file it in triplicate, your office will never receive its standard issue one gross of paper, sanitary, single-ply, perforated, on rolls.

And if you strike out "paper, sanitary" and replace it with "oven, pizza," one will be delivered in under one week.

I shudder to think what would happen if you substituted "device, nuclear."

Wednesday, March 12, 2008

Quote of the Day.

The Constitution, written by men with some experience of actual government, assumes that the chief executive will work to be king, the Parliament will scheme to sell off the silverware, and the judiciary will consider itself Olympian and do everything it can to much improve (destroy) the work of the other two branches. So the Constitution pits them against each other, in the attempt not to achieve stasis, but rather to allow for the constant corrections necessary to prevent one branch from getting too much power for too long.

Rather brilliant. For, in the abstract, we may envision an Olympian perfection of perfect beings in Washington doing the business of their employers, the people, but any of us who has ever been at a zoning meeting with our property at stake is aware of the urge to cut through all the pernicious bullshit and go straight to firearms. - David Mamet: Why I Am No Longer a 'Brain-Dead Liberal', Village Voice, 3/11/08

There's a lot more there very much worth reading. Of course the normal readership of the Voice is full-throated in its outrage that Mamet has "gone neo-con" on them.

Big tip of the hat to reader Rob Bowers for the email pointer to the piece.

Sunday, March 09, 2008

Dave Kopel reports at The Volokh Conspiracy on more revisionist history requiring deliberate omission and erroneous interpretation of written documentation.

Shades of Michale Bellesiles - only this is done in an amici brief to the Supreme Court. Bellesiles is actually cited, as though Arming America had never been disproven, and Bellesiles disgraced for his academic malpractice.

Saturday, March 08, 2008

When I posted Another Debate Invitation Refused I did not consider (though I should have) that some of the people who read this blog would charge over to give the author of the blog and the author of the comment I was responding to what-for.

Do me a favor:

STOP.

If you can't discuss the topic rationally without the use of invective, ad hominems and other insults, then DON'T. I don't need nor want your "help."

I appreciate your frustration. I understand that we are, as Dr. Michael S. Brown described it, the victims of a decades-long slow-motion hate crime, but THAT IS NO EXCUSE. If you cannot control your temper over some other person's words and attitudes, then WHY SHOULD THEY EXPECT YOU TO BE RATIONAL WITH A FIREARM IN YOUR HANDS?

Any chance I had to actually discuss the FACTS with anyone from that site is now GONE. You have, whoever you are, done what Say Uncle intelligently advises against: You've "frightened the white people" (non-gun-owners), and given them more reason to consider us as Joe Huffman describes our current condition: "gun niggers" - people who they consider dangerous and "not like us" for whom it is OK to restrict our rights.

Thanks a lot.

I've left new comments of apology over at the site. I would not be surprised if they disappeared in short order. DO NOT "HELP" ME BY BEING JERKS.

Here's one of the comments I left there, just in case she does decide to yank it:

Maggie wrote: "His blog contains a link to my posts on gun control on healthbeat, which explains why so many ideologues suddenly appeared out of the woodwork to drown out any possibility of rational discussion here--just as they had when Robert Feinman tried to raise the subject in an online diary.

"The NRA, and its supporters, are very well organized. One person who saw my post (a troll named Bob G) alerted Kevin, he in turn put a link on his blog to health beat, and suddenly we were overwhelmed with negative, nasty and personal comments. (They have removed --and will be in the future.)"

Maggie:

I'm sorry it happened, too. I certainly did not want it to, and I will write a post to that effect. However, while I will apologize for the behavior of those who came here and posted "negative, nasty, and personal comments" I cannot and will not take responsibility for them.

Again, I never made any suggestion that I was a "disinterested party." Your blog attaches a hyperlink to my name which happens to go directly TO MY BLOG. My email address, which I assume you have access to since I must leave it in order to comment here, is "gunrights@comcast." There was NO attempt made to pull the wool over anyone's eyes.

The fact that you popped over to my site, saw the "McCain-FEINGOLD Insurrection" link and leaped to the mistaken conclusion that I'm a McCain supporter (and that somehow that dubious "fact" apparently disqualifies me in some way from being a reasonable person) says far more about you than it does about me.

Further, you had - PRIOR to my Friday evening post - already refused my THREE offers to discuss the topic of gun control - publicly or privately - because of your fear that "rational debate" would be drowned out by other voices. (How that would occur via a private email exchange is beyond me, but...)

I am FULLY aware of the acid and vitriol that the gun control debate stirs up. I am a veteran of the talk.politics.guns Usenet forum and a full six months and more than 1800 posts in the "gun dungeon" of DemocraticUnderground.com. I have been blogging on the topic for nearly five years now, and studying it for nearly thirteen. I know how hostile BOTH sides can be.

As one writer described it, gun owners have been the victims of a decades-long slow-motion hate crime. We've been described in the national media as red-necked, knuckle-dragging inbreds with one tooth and single-digit IQs. And those have been some of the KINDER things said. Media forces have SELF-ADMITTEDLY (I have the references) dropped any pretense of impartiality on the topic.

While "the NRA and its supporters" ARE very well organized, you might not understand that the organization you speak of truly is "grass roots." We do this because it is IMPORTANT to us, and it isn't the NRA telling us what to do and what to think. The NRA pretty much has to follow our lead.

Again, I really would like to discuss this topic with you either publicly or privately, and that invitation goes out to ANY interested party. No negative, nasty, or personal comments. No acid, no vitriol, just a calm discussion of the FACTS, the history, the law, the statistics, and the reasoning behind my position and yours. As I said before, I don't expect to reverse anyone's beliefs, but I DO expect to give you a perspective you haven't previously been exposed to.

Again, my apologies for the trolls my post brought to your site. I should have expected it. But this is the internet, and we're both grownups. If either of us are that affected by mere words, we shouldn't be posting on the internet.

C'mon people. I thought we were better than that.

UPDATE: My comments were erased, but even more, sometime today (3/9) BOTH of her posts on gun control and all their comments were shoved down the memory hole.

Via Tam, I visited the Creative Loafing web site for a review of the book She's Got a Gun by Georgia State University photography professor Nancy Floyd. This book is similar to Kyle Cassidy's recent Armed America, but it concentrates specifically on the fairer sex. It's a pretty good piece, and I'll probably pick up a copy of the book, but the site also has a slide show of some of the images from the book, narrated by the writer of the Creative Loafing review.

You've GOT to watch that.

Here are a few images from that slide show:

That last young lady is eleven years old. According to the review, her comment for the piece was "Shooting is FUN!"

Around one in ten careless Brits has suffered a "walk 'n text" street injury in the past year through collisions with lampposts, bins and other pedestrians.

The 6.6million accidents have caused injuries ranging from mild knocks and embarrassing cuts and bruises through to broken noses, cheekbones and even a fractured skull.

Look, I've heard of "Condition White" before, but if you are so disconnected from your surroundings that you walk into lamp posts, then the world doesn't need to be padded for your protection, you need to be locked in a padded room for ours.

RTWT.

England. Where Great Britain used to be.

EDITED TO ADD: I really hope this story is a joke, because if it isn't, that nation is just too far gone to save. (And the fact that we can't tell if it's satire says that it's pretty far gone already.)

But, as I said, the fact that we couldn't tell is a sign that England is pretty far gone already. Even reader Phil B. reported that the local (UK) news treated it as real, so they couldn't tell either.

I questioned the author, an economist who writes on heath-care topics, on some of her "statistics," and I invited her not once, not twice, but three times to discuss the topic of gun control either publicly or privately.

She declined. Oh well.

But the subject of this post comes from another comment posted at that site. One "robertdfeineman" wrote:

A couple of years ago I posted a diary about gun control where I suggested treating it as a public health issue. As I recall I defined several classes of gun control issues:

1. Accidental injury
1a. by children
1b. by adults
2. Injury in the course of a crime
3. Injury in the course of a domestic disturbance
4. Injury caused by a mentally unbalanced individual
5. Suicide

I asked those who opposed gun control to select any category of their choosing and suggest what steps should be taken to lessen the rate of injury.

As you have discovered vitriol was quickly forthcoming, however useful suggestions - none.

Even the example of Canada isn't able to bring any sanity to the discussion. Canada has a fairly high level of gun ownership (mostly sports and hunting), but has a much lower level of misuse. There seems to be no discussion of why this is so.

Without getting too deep into the American psyche there just seems to be a vocal core of gun supporters who are motivated by something deeper than rational arguments. As with most such inexplicable attitudes it is likely that it has its basis in a deep seated fear, of what isn't clear.

As simple observation will show other advanced countries, that don't permit the same freedom of gun ownership and use, are not overrun by people in black helicopters, nor by crazed gangs or druggies, nor by criminals threatening home and family. Whence the insecurity?

Given that the US is in a fortress mentality mode (personal Hummers, gated communities, domestic surveillance, etc.) expecting rationality about guns seems unlikely for the immediate future.

Coming from a guy who apparently believes that the world is suffering from overpopulation and resource shortages (I guess he's never heard of Paul Erlich and The Population Bomb), he seems to believe that capitalism is outmoded and needs to be replaced by a "steady-state" economy (AKA "zero-sum" - the model every socialist system has based its economic system on).

Quelle suprise.

But I thought I'd take a shot at providing some useful suggestions without vitriol.

Here we go:

1. Accidental injury
1a. by children
1b. by adults

The answer to this is obvious, ongoing, and highly successful.

Education, education, education.

And it's obviously been working for quite some time, too. Accidental death and injury by firearm in this country is at an all-time low, and has been declining ever since we started collecting statistics. This despite the fact that 3-4 million new firearms are added to the total in private hands in this country each and every year. It doesn't require new (and dubious) safety features on guns, it doesn't require free trigger locks to be given away by government agencies, it simply requires education - and the firearms industry and the NRA are doing apparently a damned good job.

Which is more than can be said for the Brady Campaign or the Violence Policy Center.

The actual incidence of death by accidental gunshot wound has dropped 58%. The rate has dropped by 67% (the overall population has gone up over the same period.)

Over the period between 1981 and 2005 (25 years) the number of firearms in the U.S. has increased by approximately 100,000,000. Yes, that's right, one hundred million, of which about 40 million were handguns. Over that same period the number of states with "shall-issue" concealed-carry laws has increased from eight (8) to 35 (now 37). The number of "no issue" states has declined from 15 to two.

I don't know about you, but I call that "improvement."

Topic: 2. Injury in the course of a crime

Well, for one thing, since 1990 the number of deaths and injuries from criminal assault have been declining rapidly to levels not seen since the 1960s. Homicide, highly variable over the nation's history, has dropped dramatically, according to this Bureau of Justice Statistics chart:

Non-fatal attacks are down significantly, too:

What caused this? Well it wasn't "gun control" by any indication. The only "gun control" law passed during this period was the 1994 "Assault Weapon Ban" (that wasn't), but in 2005 even the New York Times admitted:

Gun crime has plummeted since the early 1990's. But a study for the National Institute of Justice said that it could not "clearly credit the ban with any of the nation's recent drop in gun violence."

Research for the study in several cities did show a significant decline in the criminal use of assault weapons during the ban. According to the study, however, that decline was offset by the "steady or rising use" of other guns equipped with high-capacity magazines - ammunition-feeding devices that hold more than 10 rounds.

So, should one conclude from this that "high-capacity magazines" lead to a decrease in overall violent crime?

The first thing that leads to a decrease in injury in the course of crime is to reduce crime. How? Well, it would appear that a good economy helps. Of course, incarcerating more than 1% of the population might be contributing factor, too. I'll leave that up to you to decide whether that's a good thing or not. But how about defense with a firearm of your own?

Only about 29% of criminal assaults involve a perpetrator with a firearm, and even if they are so armed, defending yourself with your own firearm has proven to be the most likely way to escape without injury. That is, if you believe Gary Kleck's analysis of Bureau of Justice Statistics National Crime Victimization survey data. Kleck's study indicates that defending yourself with a firearm reduces your chances of injury below any other method, including not resisting at all.

Topic 3. Injury in the course of a domestic disturbance

That's a tough one. Congress passed a law that is supposed to disarm anyone who has received so much as a ticket for misdemeanor domestic violence. Of course, like the Brady background check, the law has been equally effective at actually disarming dangerous people - that is "not at all." Generally, in this situation on party or the other may get a restraining order, but these have proven to be nothing more than tissue paper. Reciprocal restraining orders only guarantee that the one who is willing to kill is ensured of a defenseless victim, and then a knife will do as well as a gun. Here I'm going to have to admit defeat, and state plainly that I see no way to legally, constitutionally, affect this problem.

Strike one!

Topic 4. Injury caused by a mentally unbalanced individual

Again, a law has been passed that supposedly disarms people who have been adjudged mentally imbalanced or a danger to themselves or others. Again, as the Virginia Tech massacre proved, the effectiveness of this law is less than stellar. Too, there is the doctor-patient relationship which is supposed to be legally sacrosanct, the fear being, of course, that if doctors can be compelled to report about their patients to the legal authorities, some (perhaps many) would refuse to seek help at all.

Personally, I'm convinced that the recent (last decade or two) upswing in rampage killing / suicides is due to the use of anti-depressants that have a bad effect on a tiny percentage of the people who use them. That percentage is so small as to be statistical noise, but it has resulted in the deaths of a significant number of people. What to do about it? I don't know. It's a Catch-22 situation, and again, the best I can hope for is that someone law-abiding and armed can end any such situation before the perpetrator decides he's finished.

Topic 5. Suicide.

I have already considered this one in great detail. Basically, my conclusion is that while Americans do use firearms in large proportion to commit suicide, firearms are not the cause of their decision to end their own lives. America is on the low end of the scale for nations with relatively high GNPs, ranking below Norway, Germany, Sweden, Japan, Switzerland, France, Austria, Denmark and Finland for suicide rates. The leading method of suicide varies with each nation, but it appears that if you really want to kill yourself (as opposed to a "cry for help") you find a way. This is especially true among young people, as evidenced by Australia's youth suicide problem. For no apparent reason, in Australia the leading method of suicide of young men changed from firearms to asphyxiation by hanging. There were no gun laws passed during the period during which this occurred to account for the shift.

A study of the Brady 3-day waiting period found that it reduced the number of suicides by firearm among people 55 and older, but that it didn't affect any overall suicide rate. In other words, people that might have used a firearm found another, equally effective method.

My conclusion here is that the appearance of firearms being a cause of suicide is an illusion. If all firearms disappeared tomorrow, the rate of suicide would be essentially unchanged.

So in answer to your questions:

1: We've tremendously reduced accidental death and injury through education, even with a massive increase in the number of firearms in curculation. Perhaps if we want to affect this particular problem even more, we should be teaching firearm safety education in schools alongside sex education.

2: We've greatly reduced death and injury due to criminal acts over the recent decade, without any notably effective new firearms legislation. The "Assault Weapons Ban" didn't seem to have any effect, and the worst thing you can say about the massive increase the number of states that have passed "shall-issue" concealed carry laws is that those laws might not have been responsible for any of the reduction in crime.

3: Injury in domestic disturbances has also decreased, but nowhere near as much as with other types of violent crime, and here I admit defeat. In a nation founded on the concept of individual sovereignty and individual rights, I really don't see where we can affect this particular problem except by allowing the threatened parties to be armed in their own defense, and the law just isn't written that way.

4: Mentally unbalanced people deciding to commit suicide and taking strangers, coworkers, or loved ones along with them present the same problem. The only thing I can think of here is for those coworkers or loved ones to pay attention to the situation and try to get obviously disturbed people into mental health care. Unfortunately, given the same rights as everyone else, this does not seem to be effective.

5: The suicide problem appears to be one of false perception. Yes, a lot of Americans who choose to end their own lives choose to do it by means of a firearm, but that doesn't mean that they wouldn't find another way if access to a firearm was denied to them. If "gun access" caused suicide, America's suicide rate would far exceed any other nation in the world.

But perhaps instead of considering the beam in America's eye, our neighbors to the North should consider the one in their own. Even our Roger Ebert has recognized that, while Canadians don't murder each other as often as Americans do, their violent crime rate far exceeds our own.

All public policy issues ultimately boil down to one thing: Locke versus Rousseau. The individual comes first, the government is merely an association protecting your interests, and it's transactional, versus the general will, the collective, the group is more important than the individual. Everything boils down to that eventually. And the problem with "compassionate conservatism" is the same problem with social gospelism, with Progressivism and all the rest: it works on the assumption that the government can love you. The government can't love you. The government is not your mommy and it's not your daddy, and any system that is based on those assumptions will eventually lead to folly. - Jonah Goldberg in his podcast interview with Glenn and Helen Reynolds, 12/27/07. (MP3 file.)

Thursday, March 06, 2008

So, how can you, the college student, as an individual and as a group, change the circumstances of the violence you face on campus and in a bigger sense, citizens face everyday in their daily lives whether it be at the shopping mall or at lunch at Wendy's? You can accept that your protection is your responsibility and then you can choose to be prepared to face potential violence and prepared to stop the violence when it presents itself.

Tuesday, March 04, 2008

The American Left (to the extent that Leftism is consistent with an authentically American outlook) is a totalitarian movement dedicated to the bringing forth of unlimited Good, through governmental mechanisms.

These aren't people who seek evil. They are people who seek Good, albeit through dubious means. They are people who blind themselves to the truth that the power for unlimited good is cannot be distinguished, even in principle, from the power for unlimited evil. As such, they do not understand that we oppose them for their means, not their ends, and many believe that we oppose the Good they seek to bring forth, and cannot understand why anyone (other than a reactionary degenerate seeking to preserve a position of oppression based privilege) would oppose such Goodness.

This premise, government as a source of unlimited Good, directly contravenes one of the few axioms upon which America is predicated: that since it is impossible to create a government capable of doing unlimited good without creating a government capable of doing unlimited evil, we shall not make a government so capable, because it will inevitably degenerate into the unlimited evil case.

This is somewhat more briefly expressed by Charles Krauthammer's Fundamental Law of American Politics: "Conservatives think liberals are stupid. Liberals think conservatives are evil," but such brevity loses much of the nuance.

Monday, March 03, 2008

Want to Spend Some Quality Time?.

Matt Carmel of Constitution Arms emailed me this morning. He has compiled all of the Heller amici briefs into a single searchable database, available as a zipped download at www.constitutionarms.com/heller/heller.zip. If you have the latest version of Adobe Acrobat Reader (available here) you can search all of the briefs for any word or phrase. There's also an excel spreadsheet that I can't open because I don't have Excel loaded on my home computer, but the Adobe documents are great in and of themselves. He reports that it took him about 80 hours to build the documents, and I believe him!

Look, I know it's an election year and all the available choices suck. Yes, I know that the economy has finally descended from its twenty-eighth consecutive quarter of growth or whatever, and is now threatening to enter recession. I know that a lot of people bought houses they really couldn't afford, betting that the economy would continue up, up, and away! I know that oil is at all time high prices, and the dollar is reaching new lows against every currency up to and including the Som of Kyrgyzstan. I know that millions, nay tens of millions of Americans have no health insurance, or insufficient health insurance (something almost no one had prior to say, 1940). I know that Global Warming has resulted in the coldest winter in thirty years, and the Arctic ice has melted so much that it's almost back to normal. I know that things are so bad in Iraq that even the Democrats have stopped talking about it.

So for various and sundry reasons, lots of people apparently want to take their own lives.

WHY THE HELL ARE SO MANY OF THEM TRYING TO ARRANGE PACKAGE CRUISES ON THE RIVER STYX?

What is with these nutjobs deciding to take perfect strangers along with them?

It just Does. Not. Compute.

I sent in my CCW application this morning. If they want to go, fine. I'm not going with them.

One thing that can be read from this analysis is that, after all the attempts to write down all these high falutin' words to keep government in due bounds, we in the end are not ruled by laws, but by men. When men are determined to reach a given result, a piece of parchment will not stop them.

Sunday, March 02, 2008

A Primer on Second Amendment Jurisprudence(Warning: This essay is of truly epic length -13,000 words. Short attention spans need not apply.)

Back in May of 2003 when I started this blog, I had just begun a months-long debate with an Irishman living in London. The topic of that debate, unsurprisingly, was the Second Amendment. During that debate he asked me a question: "(L)et's say a liberal government came to power and wanted to ban gun ownership. It would not be able to, because of the Second Amendment, right?"

That's the question, alright. When the Supreme Court takes up District of Columbia v. Heller (née Parker v. D.C.) in a few days, we may finally get an answer to it.

But how did we get to this point?

"Our Revolution commenced on more favorable ground. It presented us an album on which we were free to write what we pleased. We had no occasion to search into musty records, to hunt up royal parchments, or to investigate the laws and institutions of a semi-barbarous ancestry. We appealed to those of nature, and found them engraved on our hearts. Yet we did not avail ourselves of all the advantages of our position. We had never been permitted to exercise self-government. When forced to assume it, we were novices in its science. Its principles and forms had entered little into our former education. We established however some, although not all its important principles. The constitutions of most of our States assert, that all power is inherent in the people; that they may exercise it by themselves, in all cases to which they think themselves competent, (as in electing their functionaries executive and legislative, and deciding by a jury of themselves, in all judiciary cases in which any fact is involved,) or they may act by representatives, freely and equally chosen; that it is their right and duty to be at all times armed; that they are entitled to freedom of person, freedom of religion, freedom of property, and freedom of the press." -- Thomas Jefferson pp.46 - 47, The Living Thoughts of Thomas Jefferson, John Dewey, presenter.

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On every question of construction (of the Constitution) let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed. --Thomas Jefferson, letter to William Johnson, June 12, 1823, The Complete Jefferson, p. 322 Paul K. Sadover

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It is important, likewise, that the habits of thinking in a free country should inspire caution in those intrusted with its administration to confine themselves within their respective constitutional spheres, avoiding in the exercise of the powers of one department to encroach upon another. The spirit of encroachment tends to consolidate the powers of all the departments in one, and thus to create, whatever the form of government, a real despotism.... If in the opinion of the people the distribution or modification of the constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designates. But let there be no change by usurpation; for though this in one instance may be the instrument of good, it is the customary weapon by which free governments are destroyed. The precedent must always greatly overbalance in permanent evil any partial or transient benefit which the use can at any time yield. - George Washington, Farewell Address, 1796

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Do not separate text from historical background. If you do, you will have perverted and subverted the Constitution, which can only end in a distorted, bastardized form of illegitimate government. - James Madison

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The whole of the Bill (of Rights) is a declaration of the right of the people at large or considered as individuals.... It establishes some rights of the individual as unalienable and which consequently, no majority has a right to deprive them of. --Albert Gallatin of the New York Historical Society, October 7, 1789.

A provision of the Constitution, it is hardly necessary to say, does not admit of two distinctly opposite interpretations. It does not mean one thing at one time and an entirely different thing at another time. - Justice Sutherland (dissenting), Blaisdell (1934)

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I quite agree with the opinion of the court that whether the legislation under review is wise or unwise is a matter with which we have nothing to do. Whether it is likely to work well or work ill presents a question entirely irrelevant to the issue. The only legitimate inquiry we can make is whether it is constitutional. If it is not, its virtues, if it have any, cannot save it; if it is, its faults cannot be invoked to accomplish its destruction. If the provisions of the Constitution be not upheld when they pinch, as well as when they comfort, they may as well be abandoned. - (Ibid.)

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The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections. - West Virginia v Barnette (1943)

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Judges know very well how to read the Constitution broadly when they are sympathetic to the right being asserted. We have held, without much ado, that “speech, or...the press” also means the Internet...and that "persons, houses, papers, and effects" also means public telephone booths....When a particular right comports especially well with our notions of good social policy, we build magnificent legal edifices on elliptical constitutional phrases - or even the white spaces between lines of constitutional text. But, as the panel amply demonstrates, when we're none too keen on a particular constitutional guarantee, we can be equally ingenious in burying language that is incontrovertibly there.

It is wrong to use some constitutional provisions as springboards for major social change while treating others like senile relatives to be cooped up in a nursing home until they quit annoying us. As guardians of the Constitution, we must be consistent in interpreting its provisions. If we adopt a jurisprudence sympathetic to individual rights, we must give broad compass to all constitutional provisions that protect individuals from tyranny. If we take a more statist approach, we must give all such provisions narrow scope. Expanding some to gargantuan proportions while discarding others like a crumpled gum wrapper is not faithfully applying the Constitution; it's using our power as federal judges to constitutionalize our personal preferences. - Judge Alex Kozinski, dissenting, Silveira v Lockyer denial to re-hear en banc, 9th Circuit Court of Appeals, (2003)

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I respectfully dissent from our order denying rehearing en banc. In so doing, I am expressing agreement with my colleague Judge Gould’s special concurrence in Nordyke v. King, and with the Fifth Circuit's opinion in United States v. Emerson, both taking the position that the Second Amendment secures an individual, and not collective, right to keep and bear arms.

The panel opinion holds that the Second Amendment “imposes no limitation on California’s [or any other state’s] ability to enact legislation regulating or prohibiting the possession or use of firearms” and “does not confer an individual right to own or possess arms.” The panel opinion erases the Second Amendment from our Constitution as effectively as it can, by holding that no individual even has standing to challenge any law restricting firearm possession or use. This means that an individual cannot even get a case into court to raise the question. The panel's theory is that “the Second Amendment affords only a collective right,” an odd deviation from the individualist philosophy of our Founders. The panel strikes a novel blow in favor of states’ rights, opining that "the amendment was not adopted to afford rights to individuals with respect to private gun ownership or possession,” but was instead “adopted to ensure that effective state militias would be maintained, thus preserving the people’s right to bear arms." It is not clear from the opinion whom the states would sue or what such a suit would claim were they to try to enforce this right. The panel's protection of what it calls the "people's right to bear arms” protects that “right” in the same fictional sense as the “people's” rights are protected in a “people's democratic republic.”
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About twenty percent of the American population, those who live in the Ninth Circuit, have lost one of the ten amendments in the Bill of Rights. And, the methodology used to take away the right threatens the rest of the Constitution. The most extraordinary step taken by the panel opinion is to read the frequently used Constitutional phrase, "the people," as conferring rights only upon collectives, not individuals. There is no logical boundary to this misreading, so it threatens all the rights the Constitution guarantees to "the people," including those having nothing to do with guns. I cannot imagine the judges on the panel similarly repealing the Fourth Amendment’s protection of the right of "the people" to be secure against unreasonable searches and seizures, or the right of "the people" to freedom of assembly, but times and personnel change, so that this right and all the other rights of "the people" are jeopardized by planting this weed in our Constitutional garden. - Judge Andrew Jay Kleinfeld, dissenting, also from Silveira v Lockyer denial to re-hear en banc, 9th Circuit Court of Appeals, (2003)

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It is literally true that the U.S. Supreme Court has entirely liberated itself from the text of the Constitution.

What 'we the people' want most of all is someone who will agree with us as to what the evolving constitution says.

We are free at last, free at last. There is no respect in which we are chained or bound by the text of the Constitution. All it takes is five hands.

What in the world is a ‘moderate interpretation’ of the text? Halfway between what it really says and what you want it to say? - Antonin Scalia, excerpts from a speech quoted in the New Orleans Times-Picayune, 3/10/04

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Something has gone seriously awry with this Court’s interpretation of the Constitution. - Clarence Thomas (dissenting) Kelo v New London (2005)

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Obliterating a provision of the Constitution, of course, guarantees that it will not be misapplied. - (Ibid.)

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The 2-1 decision of the U.S. Court of Appeals for the D.C. Circuit in Parker v. District of Columbia striking down the District of Columbia's handgun law is judicial activism at its worst. By disregarding nearly seventy years of U.S. Supreme Court precedent, two Federal judges have negated the democratically-expressed will of the people of the District of Columbia and deprived this community of a gun law it enacted thirty years ago and still strongly supports. - Paul Helmke, President of The Brady Center to Prevent Gun Violence.

The Parker v District of Columbia decision handed down on March 9, 2007 by the D.C. District Court of Appeals was a monumentally significant piece of jurisprudence, but it was most emphatically not "judicial activism" in any way, shape, or form. It was the proper application of Constitutional law, which is the duty and purpose of the federal courts. It is, unfortunately, not something the courts have a stellar record on.

As Judge Kozinski noted in the quote above, "when (judges are) none too keen on a particular constitutional guarantee, we can be equally ingenious in burying language that is incontrovertibly there." As I've mentioned previously, since I started studying the history of the right to arms I've read enough legal decisions to make ones eyes bleed. One of the finest books I can recommend to anyone interested in this topic is Clayton Cramer's For Defense of Themselves and the State: The Original Intent and Judicial Interpretation of the Right to Keep and Bear Arms (1994). This is a dry, college-level textbook of case law, but it quite thoroughly details the judicial history of the right to arms, and illustrates in no uncertain terms where judges have constitutionalized their personal preferences. From the preface:

In 1979 a solicitation from the National Rifle Association arrived in my mailbox. Like many urban Baby Boomers, I had no exposure to hunting, gun ownership, or the rest of what is sometimes disparaged as "redneck culture." Like many of our peers, influenced by my schooling and the popular press, my perceptions of gun owners and hunters were strongly negative; my answers to the NRA survey could only be considered cheeky and insulting. "Did I hunt? How often? What sort of game?" I responded, "Yes, daily, only people," and stuffed the survey into the business reply envelope. That'll show them!

"The only people that need guns are the people that hang out with criminals," I told myself. Like most of my urban contemporaries, I assumed - based on a steady drumbeat of conventional wisdom - that the Second Amendment was "about the National Guard - the militia." Why did anyone want to own a gun?

Yet, within two years of my cheeky response to the NRA survey, the critical necessity of self-defense had turned my wife and I into handgun owners. (A number of acquaintances and friends of my wife and I during the period 1975-1980 were murdered, stabbed, raped, beheaded, robbed, or beaten. ) I researched the laws that regulated the ownership and carrying of firearms, to make sure I did not unintentionally become a criminal. In the middle of my research, I found myself face to face with California Military & Veterans Code §120 - and suddenly, all the carefully inculcated notions about the meaning of the Second Amendment collapsed - I was a member of the militia, and nearly everything that I believed on the subject of the Second Amendment was in need of more careful study.

Now, eleven years later, on the 200th anniversary of the ratification of the Bill of Rights, December 15, 1791, I find myself one of those crazy people who actually think the Second Amendment was intended to protect an individual right "to keep and bear arms" - and I encourage all who disagree to examine the evidence of original intent.

I didn't start out with Clayton's bias against guns. I was raised in the "redneck culture." Though I have never been a hunter, gun ownership has always been a part of my Southern, Jacksonian, Scots-Irish heritage. It was not until I was exposed personally to the urban mindset, influenced by public schooling and the constant drumbeat of the popular media, that I came to realize that so many people are as Clayton Cramer had started off. His epiphany came from discovering that he was a member of the militia. Mine came when I met the woman who would become my wife - and who had been steeped in the anti-gun media culture for most of her life. That was in July, 1993. By 1995 I was well on the way to becoming a real gun-nut, thoroughly angered by the blatantly unconstitutional actions of the legislatures and courts, aided and abetted by the useful idiots who supported futile, counterproductive policies in open opposition to our enumerated individual rights on the feel-good basis that they were doing so for "public safety" reasons.

On the gun issue, I instituted a reexamination a few years ago in response to a number of things, but the most important one was an article by Sanford Levinson at University of Texas Law School that summarized a wave of new historical scholarship. Levinson's argument was that in the 18th century context, a well-regulated militia meant nothing other than people in the privacy of their homes.

So we looked into the historical scholarship there and ended up not being persuaded. The plain language of the Second Amendment in no way, shape, or form, can be construed, I think, as giving an absolute right to unregulated gun ownership. It says, "A well-regulated militia being necessary to the security of a free state, the right to bear arms shall not be infringed." Certainly, when you have the notion of "well-regulated" right in the constitutional language itself, it seems to defy any argument that regulation is inconsistent with the amendment.

Putting all that aside, I don't want to dwell on constitutional analysis, because our view has never been that civil liberties are necessarily coextensive with constitutional rights. Conversely, I guess the fact that something is mentioned in the Constitution doesn't necessarily mean that it is a fundamental civil liberty.

(My emphasis.) Mentioned in the Constitution. Yes, the Second Amendment of the BILL OF RIGHTS merely mentions "the right of the people to keep and bear arms." That can'tpossibly mean "that it is their right and duty to be at all times armed."

"So the Constitution says Roe, but it doesn't say I have the right to keep a gun to defend my home, huh?"

I guess you have to be a high-level intellectual to convince yourself that an enumerated right somehow isn't a fundamental civil liberty.

I believe I have few illusions on this topic. I'm quite aware that this is a battle of philosophies, but I am secure in the conviction that the Founders - whatever their individual faults - very carefully established a form of government best suited to the advancement of all humanity, that each and every part of the Bill of Rights was included to put off-limits the rights that no majority should ever have the power to usurp, and that by maintaining these rights inviolate our government could never become despotic. The United States has become the single super-power in the world, what Professor Amy Chua labels a "hyperpower," due in no small measure to our insistence on and respect for government by rule of law, but that respect has been diminished by a history of our legislatures violating the prohibitions of the Constitution, often at the urging of and almost always with the complicity of the executive, and the courts backing those violations for perceived, promised, or imagined transient benefits.

"Judicial activism"? If judicial activism is defined as "negat(ing) the democratically-expressed will of the people" when said will is in opposition to the meaning of Constitution, then we haven't had nearly enough of it, for that is the duty of the courts. There is an amendment process spelled out in Article V of that document for situations in which changes are deemed necessary.

When (Senator Harry) Reid endorsed Scalia for chief justice, he said: "I disagree with many of the results that he arrives at, but his reason for arriving at those results are (sic) very hard to dispute." There you have, starkly and ingenuously confessed, the judicial philosophy -- if it can be dignified as such -- of Reid and like-minded Democrats: Regardless of constitutional reasoning that can be annoyingly hard to refute, we care only about results. How many thoughtful Democrats will wish to take their stand where Reid has planted that flag?

This is the debate the country has needed for several generations: Should the Constitution be treated as so plastic, so changeable that it enables justices to reach whatever social outcomes -- "results" -- they, like the result-oriented senators who confirm them, consider desirable? If so, in what sense does the Constitution still constitute the nation?

Indeed. I would argue that in large part it no longer does. I would also note that each member of Congress swears an oath upon taking office:

I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter: So help me God.

It would appear that Senator Reid (and the overwhelming majority of his colleagues in Congress) need an extensive remedial course in the meaning of that document. But this is not to say that it cannot be restored, however difficult and unlikely that may be. The decision in Parker v D.C. is a bold step in that direction.

To illustrate the corruption of the Rule of Law, it is necessary to review the history of the right to arms in the courts. Bear in mind, the right to arms is hardly the only enumerated right to be eviscerated by statute and precedent, but it is the one most easily illustrated, as the vivisection has been long, blatant, and unapologetic. Cramer's book does this in exhaustive depth. Since this is a blog post, albeit of exceptional length for the style, I'll keep the list as short as I feel necessary to emphatically make the point. I will, of course, be repeating much of what I've written in other posts on this blog over the last four-plus years.

There have been two main components in the legal assault on the right to arms. The first has to do with the carrying of concealed weapons, the second having to do with the disarming of non-whites. In both cases, the actions of our courts have very often been, when viewed from modern times, egregious. Together, after 1939, the resulting legal precedents were combined into efforts to disarm the general public.

The earliest legal commentary on the intent of the Second Amendment comes from St. George Tucker's Blackstone's Commentaries, first published in 1803. St. George Tucker was a lawyer, a professor at the William and Mary college of law, and a district court judge. His text was the primary source used in early Constitutional Law classes in 19th century America. Tucker wrote:

8. A well regulated militia being necessary to the security of a free state, the right of the people to keep,(sic) and bear arms, shall not be infringed. Amendments to C. U. S. Art. 4.

This may be considered as the true palladium of liberty .... The right of self defence is the first law of nature: in most governments it has been the study of rulers to confine this right within the narrowest limits possible. Wherever standing armies are kept up, and the right of the people to keep and bear arms is, under any colour or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction. In England, the people have been disarmed, generally, under the specious pretext of preserving the game: a never failing lure to bring over the landed aristocracy to support any measure, under that mask, though calculated for very different purposes. True it is, their bill of rights seems at first view to counteract this policy: but the right of bearing arms is confined to protestants, and the words suitable to their condition and degree, have been interpreted to authorise the prohibition of keeping a gun or other engine for the destruction of game, to any farmer, or inferior tradesman, or other person not qualified to kill game. So that not one man in five hundred can keep a gun in his house without being subject to a penalty.

Fifthly, and lastly; by the separation of the judiciary from the legislative department; and the independence of the former, of the control, or influence of the latter, in any case where any individual may be aggrieved or oppressed, under colour of an unconstitutional act of the legislature, or executive. In England, on the contrary, the greatest political object may be attained, by laws, apparently of little importance, or amounting only to a slight domestic regulation: the game-laws, as was before observed, have been converted into the means of disarming the body of the people: the statute de donis conditionalibus has been the rock, on which the existence and influence of a most powerful aristocracy, has been founded, and erected: the acts directing the mode of petitioning parliament, &c. and those for prohibiting riots: and for suppressing assemblies of free-masons, &c. are so many ways for preventing public meetings of the people to deliberate upon their public, or national concerns. The congress of the United States possesses no power to regulate, or interfere with the domestic concerns, or police of any state: it belongs not to them to establish any rules respecting the rights of property; nor will the constitution permit any prohibition of arms to the people; or of peaceable assemblies by them, for any purposes whatsoever, and in any number, whenever they may see occasion.

(My emphasis). So, as of 1803 the legal understanding of the Second Amendment was that it was a prohibition on Congress to prevent the disarmament of "the people" - that is, the free, white citizens of the United States. (Slavery got addressed with the Civil War.)

§ 1889. The next amendment is: "A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed."

§ 1890. The importance of this article will scarcely be doubted by any persons, who have duly reflected upon the subject. The militia is the natural defence of a free country against sudden foreign invasions, domestic insurrections, and domestic usurpations of power by rulers. It is against sound policy for a free people to keep up large military establishments and standing armies in time of peace, both from the enormous expenses, with which they are attended, and the facile means, which they afford to ambitious and unprincipled rulers, to subvert the government, or trample upon the rights of the people. The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them.

But Story was prescient, concluding:

And yet, though this truth would seem so clear, and the importance of a well regulated militia would seem so undeniable, it cannot be disguised, that among the American people there is a growing indifference to any system of militia discipline, and a strong disposition, from a sense of its burthens, to be rid of all regulations. How it is practicable to keep the people duly armed without some organization, it is difficult to see. There is certainly no small danger, that indifference may lead to disgust, and disgust to contempt; and thus gradually undermine all the protection intended by this clause of our national bill of rights.

(My emphasis.) Regardless, both Tucker and Story, contemporaries of the Founders, understood that the right protected by the Second Amendment was an individual one, not some ill-defined "collective right" on the part of the states. And further, even should Story's prescient vision come true and the militia system fall into disrepair, the right protected by the Second Amendment would still exist. It was precisely this indifference, disgust, and contempt that has led to Britain's general victim disarmament. It is this goal that gun "control" groups here have been trying to achieve for decades through efforts to make it increasingly more difficult and expensive to acquire, retain, and use firearms, and to engender in the general public a distaste for a culture that has traditionally held a place of honor in America.

The first legal challenge to the right to arms to reach a state supreme court occurred in 1822 in Kentucky's Bliss v Commonwealth. Kentucky had outlawed the concealed carry of weapons "unless when traveling on a journey." Defendant Bliss had been convicted of carrying a sword-cane, and had filed an appeal on the grounds that the Kentucky constitution stated "the right of the citizen to bear arms in defense of themselves and the state shall not be questioned." The Kentucky Supreme Court said:

That the provisions of the act in question do not import an entire destruction of the right of the citizens to bear arms in defence of themselves and the state, will not be controverted by the court; for though the citizens are forbid wearing weapons concealed in the manner described in the act, they may, nevertheless, bear arms in any other admissible form. But to be in conflict with the constitution, it is not essential that the act should contain a prohibition against bearing arms in every possible form; it is the right to bear arms in defence of the citizens and the state, that is secured by the constitution, and whatever restraint the full and complete exercise of that right, though not an entire destruction of it, is forbidden by the explicit language of the constitution.

If, therefore, the act in question imposes any restraint on the right, immaterial what appellation may be given to the act, whether it be an act regulating the manner of bearing arms or any other, the consequence, in reference to the constitution, is precisely the same, and its collision with that instrument equally obvious.

And can there be entertained a reasonable doubt but the provisions of the act import a restraint on the right of the citizens to bear arms? The court apprehends not. The right existed at the adoption of the constitution; it had then no limits short of the moral power of the citizens to exercise it, and it in fact consisted in nothing else but in the liberty of the citizens to bear arms. Diminish that liberty, therefore, and you necessarily restrain the right; and such is the diminution and restraint, which the act in question most indisputably imports, by prohibiting the citizens wearing weapons in a manner which was lawful to wear them when the constitution was adopted. In truth, the right of the citizens to bear arms, has been as directly assailed by the provisions of the act, as though they were forbid carrying guns on their shoulders, swords in scabbards, or when in conflict with an enemy, were not allowed the use of bayonets; and if the act be consistent with the constitution, it cannot be incompatible with that instrument for the legislature, by successive enactments, to entirely cut off the exercise of the right of the citizens to bear arms. For in principle, there is no difference between a law prohibiting the wearing concealed arms, and a law forbidding the wearing such as are exposed; and if the former be unconstitutional, the latter must be so likewise.

In 1822 that Kentucky Supreme Court understood that words have meaning, and words in a Constitution have specific meanings. Bliss won.

The state of Kentucky, taking Washington's advice to heart, amended its Constitution in 1891 to: "...(T)he right to bear arms in defense of themselves and of the State, subject to the power of the General Assembly to enact laws to prevent persons from carrying concealed weapons."

Kentucky passed a "shall-issue" concealed-carry law in 1996.

But in 1833's State v. Mitchell, Indiana's Supreme Court felt differently. Their Constitution still reads today "The people shall have a right to bear arms, for the defense of themselves and the State," wording not too far different from Kentucky's. But in 1831 the state legislature passed a similar statute: "That every person, not being a traveller, who shall wear or carry any dirk, pistol, sword in a sword-cane, or other dangerous weapon concealed shall upon conviction thereof, be fined in any sum not exceeding one hundred dollars." Clayton Cramer notes in his book:

From the frequency with which this decision is cited one might assume that it is a powerful opinion, containing a clear and unambiguous elucidation of why concealed carry laws are constitutional.

You know, like Bliss was. However:

In fact, the entire decision of the Indiana Supreme Court in this case is a single sentence: "It was held in this case, that the statute of 1831, prohibiting all persons, except travellers, from wearing or carrying concealed weapons, is not unconstitutional."

The Indiana Supreme Court had upheld a lower court's decision, and found the question sufficiently uninteresting - or sufficiently difficult to justify - that they offered no explanation of the apparent conflict between Article I, §20 of the Indiana Constitution...and a law prohibiting the carrying of concealed weapons. In light of the clear-cut contrary position taken in the only extant precedent, Bliss v. Commonwealth (1822), the position taken in St. George Tucker's 1803 edition of Blackstone, William Rawle's 1829 A View of the Constitution, and the clear language of the Indiana Constitution itself, the Indiana Supreme Court's apparent lack of need to explain its ruling is all the more puzzling.

Why then, is this slip of a decision so often cited? Probably because it was the only precedent to which later state courts could point, in order to uphold statutes that prohibited concealed carry of weapons.

At least Kentucky had the decency to amend its Constitution after its Supreme Court practiced "judicial activism at its worst."

Indiana passed "shall issue" concealed carry in 1980.

The earliest federal case I am aware of that even mentions the right to arms is also one of the most reviled. I have cited it on numerous occasion on this blog, and have been rebuked for it more than once. It is Dred Scott v Sanford (1857). In this case the U.S. Supreme Court found that blacks, free or slave, could not be citizens. The reasoning of the seven-justice majority:

For if they were so received, and entitled to the privileges and immunities of citizens, it would exempt them from the operation of the special laws and from the police regulations which they considered to be necessary for their own safety. It would give to persons of the negro race, who were recognised as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went. And all of this would be done in the face of the subject race of the same color, both free and slaves, and inevitably producing discontent and insubordination among them, and endangering the peace and safety of the State.

(My emphasis.) Note that the right to "keep and carry arms wherever they went" is a right not predicated on membership in a militia, but merely on ones citizenship. This is in agreement with St. George Tucker, Joseph Story, Thomas Jefferson, and the Kentucky Supreme Court.

The Federal Court of Appeals Parker decision also comments on this case, but its excerpt is different:

For example, no one, we presume, will contend that Congress can make any law in a Territory respecting the establishment of religion, or the free exercise thereof, or abridging the freedom of speech or of the press, or the right of the people of the Territory peaceably to assemble, and to petition the Government for the redress of grievances.

Nor can Congress deny to the people the right to keep and bear arms, nor the right to trial by jury, nor compel any one to be a witness against himself in a criminal proceeding.

It continues:

Although Dred Scott is as infamous as it was erroneous in holding that African-Americans are not citizens, this passage expresses the view, albeit in passing, that the Second Amendment contains a personal right. It is included among other individual rights, such as the right to trial by jury and the privilege against self-incrimination. The other Second Amendment cases of the mid-nineteenth century did not touch upon the individual versus collective nature of the Amendment's guarantee.

As I have noted elsewhere, Chief Justice Taney and six other Justices were wrong to deny citizenship to blacks, but they knew exactly what rights they were denying them - as individuals - by doing so.

So, as late as 1857 the Supreme Court of the U.S. understood that the right to arms was individual, and not directly associated with militia service. In fact, the Court held that Congress had no power to "deny the people the right to keep and bear arms," or inhibit their ability to "keep and carry arms wherever they went."

Once over the lip of the slippery slope, things go rapidly downhill from there.

Prior to the Civil War it was legally recognized that the Bill of Rights served as a check upon the Federal government only. The Second Amendment to the Constitution of the United States was not even brought up in Bliss v. Commonwealth, only the State constitutional protection mattered there. However, following the Civil War many Southern states enacted "Black Codes" - laws which were designed to keep blacks if not in slavery then in a state not far removed. And the courts went along happily, upholding law after law, creating precedent after precedent, always with the eye on the immediate result and never considering the damage being done to the Rule of Law. Chief Justice Taney recognized what the rights of citizens were, and the Civil War was very much about just who was and who wasn't a citizen. Following the war the Thirteenth Amendment was passed defining who was a citizen, and the Fourteenth Amendment was passed with the intent to ensure the rights of those new citizens were protected against infringement by the states. The Fourteenth Amendment even uses the "privileges and immunities" language of the Dred Scott decision in its "equal protection" clause:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

(My emphasis.) The Fourteenth Amendment was ratified in 1868.

With regard to the Second Amendment, the damage began with U.S. v Cruikshank (1875), a case in which a mob had killed over 100 blacks in an 1873 massacre in Colfax, Louisiana. After the slaughter only nine men were arrested, and they were charged with the murder of only one man. The Cruikshank case was an appeal over a conviction for violation of Louisiana's Enforcement Acts of 1870, laws designed to protect the rights of the newly freed.

The complaint also uses the language of the Dred Scott decision and the 14th Amendment:

The second (count) avers an intent to hinder and prevent the exercise by the same persons of the 'right to keep and bear arms for a lawful purpose.' (Second Amendment)

The third avers an intent to deprive the same persons 'of their respective several lives and liberty of person, without due process of law.' (Fifth Amendment)

The fourth avers an intent to deprive the same persons of the 'free exercise and enjoyment of the right and privilege to the full and equal benefit of all laws and proceedings for the security of persons and property' enjoyed by white citizens. (Fourteenth Amendment)

The fifth avers an intent to hinder and prevent the same persons 'in the exercise and enjoyment of the rights, privileges, immunities, and protection granted and secured to them respectively as citizens of the said United States, and as citizens of the said State of Louisiana, by reason of and for and on account of the race and color' of the said persons. (Fourteenth Amendment)

The appellant lost. On the part of the Second Amendment the Court said:

The second and tenth counts are equally defective. The right there specified is that of 'bearing arms for a lawful purpose.' This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence.

(My emphasis.) Note that this language matches that of the Kentucky Supreme Court in Bliss v Commonwealth. But here's the difference:

The second amendment declares that it shall not be infringed; but this, as has been seen, means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the national government, leaving the people to look for their protection against any violation by their fellow-citizens of the rights it recognizes....

(My emphasis.) Thus a precedent was established, yet to be overturned, allowing the myriad patchwork of conflicting gun laws we have across the nation that today can turn a law-abiding citizen into a felon for crossing a city, county, or state line with a firearm in their vehicle, for possessing a .22 caliber tube-fed rifle in New Jersey, for missing a flight at JFK when traveling with a firearm, or at least get them arrested and incarcerated without legal cause. The federal government can't (legally) infringe on the right to arms, but state and local governments can! The expressed intent of the 14th Amendment to bring "equal protection" of the "privileges and immunities" of citizenship to all was kicked to the curb, discarded "like a crumpled gum wrapper," in its first test. Cruikshank was the primary reason that Washington, D.C. was the ideal place to bring suit against a gun ban. Not being a "state," its laws are Federal in nature, and the Second Amendment directly applies.

Cruikshank was used as precedent in a follow-on case, Presser v Illinois (1886) wherein it was decided - with reference to Cruikshank - that private militias could be prohibited by state law - however:

(I)n view of the fact that all citizens capable of bearing arms constitute the reserved military force of the national government as well as in view of its general powers, the States cannot prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security.

For some reason this portion of the decision never gets mentioned by gun bancontrolsafety advocates, even though the decision states it not once, but twice:

It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the States, and in view of this prerogative of the general government, as well as of its general powers, the States cannot, even laying the constitutional provision in question out of view, prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the general government.

(My emphasis.) Presser supports the idea that some gun control is valid, but outright disarmament is verboten.

By the turn of the 20th Century, the executive and legislative branches of government had become more "progressive." Marx had published his Communist Manifesto in 1848, and his flawed but seductive philosophy had made major inroads in Europe and America. One of those inroads here (IMHO) was the "Progressive movement." Although I don't think "Progressives" of the period had embraced Marxism in whole, their movement had gained much popular support and resulted in significant alteration to the Federal government - much of it bad. The Progressives were responsible for establishment of the income tax (Amendment XVI, and one of the planks of the Manifesto), the popular election of senators (Amendment XVII), and Prohibition (Amendment XVIII).

Pushing Constitutional Amendments through to ratification is an intentionally difficult process. The fact that two of these amendments passed in a single year, (1913) and the third six years later (followed by womens suffrage in 1920) indicates a significant popular political movement. There has never again been so short a period in which so many amendments have been passed. That movement was responsible, I believe, for the election of Franklin Roosevelt in 1933. One of the planks Roosevelt ran on was the ending of Prohibition, and he was successful in that, but it left a lot of Treasury agents without much to do, and there had been a huge (but finally declining) amount of violence involved in the illegal traffic in alcohol, most vividly with fully-automatic weapons as romanticized by Hollywood during and after the period.

In 1934 the Roosevelt administration pushed through the National Firearms Act as a part of its "war on crime." (Sound familiar?) The 1934 NFA was passed as a "revenue measure" since the federal legislature understood that it did not have the power (per Cruikshank) to infringe on the right to arms. It did, however, have the power to tax - thus the weapons of movie criminals (machine guns, sawed-off shotguns, "silencers") could be "regulated" through taxation. And in order to make sure the taxes got paid, registration. Handguns - then as now the most popular "crime guns" going - were excluded, as Clayton Cramer explains:

Because of concerns expressed by some Congressmen that including handguns under this regulatory scheme would become burdensome to law-abiding people, and "cause an awful revolt all over the United States amongst private citizens," handguns were removed from the law.

It was another example of "divide and conquer." Few people owned full-auto weapons or suppressors. Sawed-off shotguns were dirt cheap. Nobody cared much about them. Everybody "knew" these were the weapons of criminals, but handguns? Lots of good people owned handguns. They wouldn't stand for being lumped in with the criminals.

Today we have this same condition with "assault weapons" and rifles chambered for the .50BMG cartridge. When the "assault weapons ban" of 1994 was passed, not that many people owned them, but the law (thankfully) was badly written, and firearms with all of the appearance and functionality could still be manufactured and sold. Judging by the Great Zumbo Incident of 2007, I'd say that there are a lot of "terrorist rifle" owners out there today.

But not so many people own a .50BMG "sniper rifle," or a .338 Lapua "intermediate sniper rifle" so they're still fair game for the banners. After all, public indifference, disgust, and contempt (not to mention abject fear) have been the goals of the opponents of the right to arms from the beginning. The .50 BMG rifle's exclusivity makes it a juicy target, so to speak. The smaller calibers hide behind in the fine print of the proposed legislation.

The '34 NFA established a registry and tax system. It put a $200 tax ($3,150 in 2008 dollars according to this inflation calculator) on any machine gun, short barreled rifle, short-barreled shotgun, or suppressor each time it was "transferred" - sold to another party. That was about the purchase price of a 1928 model Thompson submachinegun. It was about twenty times the price of a twelve-gauge double-barreled shotgun with the barrels hacked off.

In 1938 a pair of moonshiners were arrested. No moonshine was found, but there was an unregistered, untaxed sawed-off shotgun in their truck. The men were charged with violation of the '34 NFA. Their defense in District court was that the National Firearms Act "was an attempt to usurp the police powers of the states" and a violation of the Second Amendment of the Constitution. This was not the first time such a defense had been made. In U.S. v Adams (1935) the same argument had been made in a Florida district court. The judge in Adams found that the 1934 NFA was structurally equivalent to the 1914 Harrison Narcotics Tax Act. Wherein specific drugs were taxed and regulated and dispensed only through doctors, specific firearms were taxed and regulated and sold only through licensed gun dealers. The Constitutionality of the Harrison Act had been validated in U.S. v Doremus (1919), a case of heroin distribution.

But here are the differences between Adams and Doremus: First, the right to arms is one of the rights enumerated in the Bill of Rights. No such enumerated protection exists for the right to possess, distribute, or consume a mind-altering substance. Second, the tax in Doremus is described:

Section 1 of the act (section 6287g) requires persons who produce, import, manufacture, compound, deal in, dispense, sell, distribute, or give away opium or cocoa leaves or any compound, manufacture, salt, derivative or preparation thereof, to register with the collector of internal revenue of the district his name or style, place of business, and place or places where such business is to be carried on. At the time of such registry every person who produces, imports, manufactures, compounds, deals in, dispenses, sells, distributes, or gives away any of the said drugs is required to pay to the collector a special tax of $1 per annum.

One dollar. Even in 1919 dollars that's only $12 today. And that's an annual tax, not a "per pill" price. The District Court found the Harrison Act to be unconstitutional. The Supreme Court overturned.

Now, normally the procedure is for the District Attorney to appeal to the Circuit Court of Appeals for his state when he loses, unless he believes the case to be a lost cause. Then, no matter who loses, an appeal usually is made for an en banc rehearing by the entire panel of Appeals court judges in that circuit. Then, if no one is willing to give up, the case is appealed to the Supreme Court. SCOTUS doesn't hear a lot of cases. They quite often "deny cert" - certiorari, or decline to hear. This does not necessarily mean the Court agrees with the decision, it means they aren't going to hear for one or more of any number of reasons - statute of limitations, standing of the appellant or appellee, etc. For whatever reason the case does not get four out of nine votes from the Justices, but it's fairly rare for a case to proceed from the District court to the Supreme Court without passing through the Appellate court first. Honestly, I don't know of a single other incident where this has occurred. If one of my readers does, I'd be interested to hear about it.

Miller did. And in record time. The Miller indictment was quashed by the District court on January 3, 1939. It was appealed - directly to the Supreme Court - on January 30. Miller's lawyer received notification that day that the case had been appealed, but Miller couldn't be found, the lawyer wasn't going to get paid, and he did not file either an objection or a brief on behalf of his defendants. Cert was granted on March 13. Oral argument was made on March 30 - with no defense presented whatsoever. The U.S. Attorney's brief for the case went some 21 pages and ran the gamut.

One of the arguments made by the prosecutor was that neither Miller nor Layton were members of a militia, "well regulated" or otherwise, thus they had no right under the Second Amendment to possess a firearm. The court spent considerable time discussing militias, but they did not reach any conclusion on that question. They could have, easily, but they did not.

Instead, the court ruled very narrowly on the firearm in question - Miller's sawed-off shotgun. The key excerpt:

In the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.

"In the absence of any evidence..."

No defense was presented. No evidence that short-barreled shotguns have been used in a military capacity since the inception of the firearm was presented to the Court - so they could (quite honestly!) claim judicial ignorance. On the basis of this ignorance the Supreme Court of the United States overturned the District Court's decision and remanded the case back to that court for "finding."

Miller was dead, or at least no one could find him. Layton pled guilty.

And the slide down the slippery slope accelerated.

In 1942 the first Appeals Court decision on the Second Amendment post-Miller reached the First Circuit: Cases v. U.S. In this case a resident of Puerto Rico, Jose Cases Velazquez, was charged and convicted of violation of the Federal Firearms Act for receiving a firearm and ammunition "in interstate commerce." (The "commerce clause" raises its ugly head again.) One of Mr. Velazquez's defenses was that the law under which he was convicted violated his Second Amendment rights. Here's the pertinent excerpt from the First Circuit's decision:

The right to keep and bear arms is not a right conferred upon the people by the federal constitution. Whatever rights in this respect the people may have depend upon local legislation; the only function of the Second Amendment being to prevent the federal government and the federal government only from infringing that right. United States v. Cruikshank, 92 U.S. 542, 553, 23 L.Ed. 588; Presser v. Illinois, 116 U.S. 252, 265, 6 S.Ct. 580, 29 L.Ed. 615.

As irritating as it is, this is actually "good" - i.e. correct - law. Lower courts cannot overturn Supreme Court precedent, and as pointed out above, those two cases do say that.

But the Supreme Court in a dictum in Robertson v. Baldwin, 165 U.S. 275, 282, 17 S. Ct. 326, 41 L.Ed. 715, indicated that the limitation imposed upon the federal government by the Second Amendment was not absolute and this dictum received the sanction of the court in the recent case of United States v. Miller, 307 U.S. 174, 182, 59 S.Ct. 816, 83 L.Ed. 1206.

In the case last cited the Supreme Court, after discussing the history of militia organizations in the United States, upheld the validity under the Second Amendment of the National Firearms Act of June 26, 1934, 48 Stat. 1236, in so far as it imposed limitations upon the use of a shotgun having a barrel less than eighteen inches long. It stated the reason for its result on page 178 of the opinion in 307 U.S., on page 818 of 59 S.Ct., 83 L.Ed. 1206, as follows: "In the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantee's(sic) the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense."

Apparently, then, under the Second Amendment, the federal government can limit the keeping and bearing of arms by a single individual as well as by a group of individuals, but it cannot prohibit the possession or use of any weapon which has any reasonable relationship to the preservation or efficiency of a well regulated militia.

(My emphasis.) So far, so good. But this is where the ski slope steepens:

However, we do not feet that the Supreme Court in this case was attempting to formulate a general rule applicable to all cases. The rule which it laid down was adequate to dispose of the case before it and that we think was as far as the Supreme Court intended to go. At any rate the rule of the Miller case, if intended to be comprehensive and complete would seem to be already outdated, in spite of the fact that it was formulated only three and a half years ago, because of the well known fact that in the so called "Commando Units" some sort of military use seems to have been found for almost any modern lethal weapon. In view of this, if the rule of the Miller case is general and complete, the result would follow that, under present day conditions, the federal government would be empowered only to regulate the possession or use of weapons such as a flintlock musket or a matchlock harquebus.

But to hold that the Second Amendment limits the federal government to regulations concerning only weapons which can be classed as antiques or curiosities, - almost any other might bear some reasonable relationship to the preservation or efficiency of a well regulated militia unit of the present day, - is in effect to hold that the limitation of the Second Amendment is absolute. Another objection to the rule of the Miller case as a full and general statement is that according to it Congress would be prevented by the Second Amendment from regulating the possession or use by private persons not present or prospective members of any military unit, of distinctly military arms, such as machine guns, trench mortars, anti-tank or anti-aircraft guns, even though under the circumstances surrounding such possession or use it would be inconceivable that a private person could have any legitimate reason for having such a weapon. It seems to us unlikely that the framers of the Amendment intended any such result.

Conveniently ignoring the fact that private individuals did indeed own artillery at the time of the Founding. Conveniently ignoring Founder Tench Cox's quote "Their swords, and every other terrible instrument of the soldier, are the birth right of an American. ... The unlimited power of the sword is not in the hands of either the federal or the state governments, but, where I trust in God it will ever remain, in the hands of the people." The lower court might have decided to make some ruling on what could or couldn't be a "terrible instrument of the soldier," but they declined. Instead, they punted:

Considering the many variable factors bearing upon the question it seems to us impossible to formulate any general test by which to determine the limits imposed by the Second Amendment but that each case under it, like cases under the due process clause, must be decided on its own facts and the line between what is and what is not a valid federal restriction pricked out by decided cases falling on one side or the other of the line.

They decided in this case that Mr. Velazquez failed the smell test. But this case was the precedent that essentially rendered the Second Amendment meaningless. Cases was followed by the Third Circuit's U.S. v Tot, also in 1942. More recently, the Sixth Circuit decided U.S. v. Warin, a 1976 submachinegun case essentially identical to the one that put Hollis Wayne Fincher in prison.

And in 1996 the Ninth Circuit Court of Appeals gave us its Hickman v. Block decision. At least the First Circuit acknowledged that "each case... must be decided on its own facts and the line between what is and what is not a valid federal restriction...." Not so, said the Ninth Circuit.

Douglas Ray Hickman sued the City of Los Angeles, the chief of police, and numerous other entities because he was denied a concealed weapons permit. He began seeking a permit in 1988, and finally filed suit in 1991. It took five years to reach the Ninth Circuit. He claimed that denial of the permit violated his right to arms under the Second Amendment. He lost. The Ninth Circuit Court of Appeals rejected his suit. Here is their deeply researched, exhaustively annotated, well-argued decision in all its jurisprudential glory:

This case turns on the first constitutional standing element: whether Hickman has shown injury to an interest protected by the Second Amendment. We note at the outset that no individual has ever succeeded in demonstrating such injury in federal court. The seminal authority in this area continues to be United States v. Miller, 307 U.S. 174 (1939), in which the Supreme Court upheld a conviction under the National Firearms Act, 26 U.S.C. S 1132 (1934), for transporting a sawed-off shotgun in interstate commerce. The Court rejected the appellant's hypothesis that the Second Amendment protected his possession of that weapon.

First error. The Court did no such thing.

Consulting the text and history of the amendment, the Court found that the right to keep and bear arms is meant solely to protect the right of the states to keep and maintain armed militia. In a famous passage, the Court held that [i]n the absence of any evidence tending to show that the possession or use of a "shotgun having a barrel of less than eighteen inches in length" at this time has some reasonable relationship to the preservation or efficiency of a well-regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. 307 U.S. at 178.

The Ninth Circuit judges hereby illustrate that their reading comprehension is faulty, since that passage contradicts their position, or it illustrates that they have deliberately misinterpreted the decision. Strike one.

The Court's understanding follows a plain reading of the Amendment's text. The Amendment's second clause declares that the goal is to preserve the security of "a free state;" its first clause establishes the premise that well-regulated militia are necessary to this end. Thus it is only in furtherance of state security that "the right of the people to keep and bear arms" is finally proclaimed.

Yet a fair reading of Miller does NOT lead to that conclusion. That position was argued before the Court by the U.S. Attorney, yet the Court based its decision not on whether Miller was a member of a militia, but on whether his weapon was suitable for use in one.

Following Miller, "[i]t is clear that the Second Amendment guarantees a collective rather than an individual right." United States v. Warin, 530 F.2d 103, 106 (6th Cir.), cert. denied 96 S.Ct. 3168 (1976); see also Thomas v. Members of City Council of Portland, 730 F.2d 41, 42 (1st Cir. 1984) (same, citing Warin); United States v. Johnson, 497 F.2d 548, 550 (4th Cir. 1974) (cited with approval in Lewis, 445 U.S. at 65 n.8) (same). Because the Second Amendment guarantees the right of the states to maintain armed militia, the states alone stand in the position to show legal injury when this right is infringed.

Nevertheless, Hickman argues that under the Second Amendment, individuals have the right to complain about the manner in which a state arms its citizens. We fail to see the logic in this argument. The Second Amendment creates a right, not a duty.

Not according to Dred Scott v. Sanford. Not according to U.S. v Cruikshank. Not according to Presser v Illinois. The Second Amendment protects a pre-existing right of "bearing arms for a lawful purpose," to "keep and carry arms" wherever a citizen may go. Strike Two.

It does not oblige the states to keep an armed militia, or to arm their citizens generally, although some states do preserve, nominally at least, a broad individual right to bear arms as a foundation for their state militia. See, e.g., People v. Blue, 54 P.2d 385 (Colo. 1975) (en banc) (citing Colo. Const. art. II, section 13) (recognizing individual right to bear arms under state constitution); State v. Amos, 343 So.2d 166, 168 (La. 1977) (citing La. Const. art I, section 11) (same proposition); State v. Krantz, 164 P.2d 453 (Wash. 1945) (citing Wash. Const. art I, section 24) (same proposition); Akron v. Williams, 177 N.E.2d 802 (Ohio Ct. App. 1966) (citing Ohio Const. art. I, section 4) (same proposition). Even in states which profess to maintain a citizen militia, an individual may not rely on this fact to manipulate the Constitution's legal injury requirement by arguing that a particular weapon of his admits some military use, or that he himself is a member of the armed citizenry from which the state draws its militia. United States v. Oakes, 564 F.2d 384, 387 (10th Cir. 1977), cert. denied, 435 U.S. 926 (1978) (technical membership in state militia insufficient to show legal injury under Second Amendment); Warin, 530 F.2d at 106 (same with respect to individual "subject to enrollment" in state militia); United States v. Hale, 978 F.2d 1016, 1019 (8th Cir. 1982) (same, citing Warin); United States v. Graves, 554 F.2d 65, 66 n.2 (3rd. Cir. 1977) (en banc) (narrowly construing the Second Amendment "to guarantee the right to bear arms as a member of a militia").

Hickman's claim amounts to a "generalized grievance" regarding the organization and training of a state militia. See Lujan, 112 S.Ct. at 2144. We do not involve ourselves in such matters. As the Supreme Court has observed, "decisions as to the composition, training, equipping, and control of a military force are essentially professional military judgments," and as such are nonjusticiable. Gilligan, 413 U.S. at 10. "[I]t is difficult to conceive of an area of governmental activity in which the courts have less competence." Id. For this reason, among others, we leave military matters to the elected branches of government.

Because Hickman has not sued to defend the state's right to keep an armed militia, he has failed to show "injury" as required by constitutional standing doctrine. Accordingly we have no jurisdiction to hear his appeal.

So from the founding of a nation in which, according to Thomas Jefferson, it is a citizen's"right and duty to be at all times armed," a nation in which St. George Tucker understood that the constitution could not be used to "permit any prohibition of arms to the people," a nation where in 1857 the Supreme Court declared that the Second Amendment protected a right of citizens"to keep and carry arms wherever they went," where in 1939 the Supreme Court ruled - not on a defendant's membership in a militia, but on the suitability of his weapon for militia use, we reached the point where the right of individuals somehow became a right of the States - the famous shift from an "individual rights" understanding to a "collective rights" interpretation. Moreover, "no individual even has standing to challenge any law restricting firearm possession or use." At least not in the Ninth Circuit (where I happen to live.)

The extinction of the right to arms was almost complete. The meaning of the Second Amendment of the Constitution was altered without the use of the Amendment process - merely by the repeated death-by-a-thousand-cuts judicial re-interpretation, and the power of stare decisis.

But the job was not quite complete.

Beginning about the mid-1970's there was some pushback. Georgia passed a "may issue" concealed-carry law in 1976. As noted above, Indiana passed "shall-issue" concealed carry in 1980. Indiana was followed by Maine and North Dakota in 1985 and South Dakota in 1986.

In 1987 the opposition woke up. Florida passed its "shall issue" concealed carry law. In the mean time, legal scholars were studying the Second Amendment and the current jurisprudence. In 1989 University of Texas, Austin law professor Sanford Levinson published his seminal paper The Embarrassing Second Amendment in the Yale Law Review, which ignited a firestorm of controversy, and inspired a great deal of research. In 2000, Harvard Law professor Laurence Tribe - a vocal advocate for gun control - revised his textbook American Constitutional Law with regard to the Second Amendment with this passage:

Perhaps the most accurate conclusion one can reach with any confidence is that the core meaning of the Second Amendment is a populist / republican / federalism one: Its central object is to arm 'We the People' so that ordinary citizens can participate in the collective defense of their community and their state. But it does so not through directly protecting a right on the part of states or other collectivities, assertable by them against the federal government, to arm the populace as they see fit. Rather the amendment achieves its central purpose by assuring that the federal government may not disarm individual citizens without some unusually strong justification consistent with the authority of the states to organize their own militias. That assurance in turn is provided through recognizing a right (admittedly of uncertain scope) on the part of individuals to possess and use firearms in the defense of themselves and their homes -- not a right to hunt for game, quite clearly, and certainly not a right to employ firearms to commit aggressive acts against other persons -- a right that directly limits action by Congress or by the Executive Branch and may well, in addition, be among the privileges or immunities of United States citizens protected by §1 of the Fourteenth Amendment against state or local government action.

From the time of Florida's passage of "shall issue" concealed carry, the total number of states with such laws has increased from nine (with one state, Vermont, not requiring a permit at all) to 37, with two states (Alaska and Vermont) not requiring permits. The number of "no issue" states dropped from fifteen to two.

And we got some pushback in the courts. In 2001 the Fifth Circuit Court of Appeals proclaimed in its U.S. v. Emerson decision that the right protected by the Second Amendment was an individual, not a "states" right - in direct opposition to the Ninth Circuit's declaration in Hickman. Now we had a "circuit split" in which two Appeals courts had ruled on opposite sides of a Constitutional question. Normally this is the point at which the Supreme Court will step in to "fix" the split, but the Court denied cert. on Emerson. The Ninth Circuit, however, responded with not one, but two decisions upholding its Hickman precedent: Nordyke v. King and Silveira v. Lockyer. Neither of those cases were granted cert. either.

Which put the question of whether the Second Amendment protects an individual right in a quandary, and again put the meaning of the Miller decision in a bright spotlight.

The 5th Circuit -- I think it was in the Emerson case, if I'm remembering it correctly -- agreed with what I understand to be your view, that this protects an individual right. But they went on to say that the right was not infringed in that case. They upheld the regulations there.

The 9th Circuit has taken a different view. I don't remember the name of the case now. But a very recent case from the 9th Circuit has taken the opposite view that it protects only a collective right, as they said.

In other words, it's only the right of a militia to possess arms and not an individual right.

Particularly since you have this conflict -- cert was denied in the Emerson case -- I'm not sure it's been sought in the other one or will be. That's sort of the issue that's likely to come before the Supreme Court when you have conflicting views.

I know the Miller case side-stepped that issue. An argument was made back in 1939 that this provides only a collective right. And the court didn't address that. They said, instead, that the firearm at issue there -- I think it was a sawed-off shotgun -- is not the type of weapon protected under the militia aspect of the Second Amendment.

So people try to read the tea leaves about Miller and what would come out on this issue. But that's still very much an open issue.

Not so much. For an off-the-cuff answer, "the Miller case side-stepped the issue" is exactly right, but the Chief Justice erred or mis-stated a few things. In U.S. v Emerson the 5th Circuit three-judge panel did an "original understanding" analysis of the Second Amendment with particular attention paid to U.S. v Miller. At question in that case was whether a law recently passed by Congress violated the Second Amendment by prohibiting anyone under a restraining order from possessing or purchasing a firearm. The District Court judge said, after doing his own "original understanding" analysis said "yes, it does." However, the appeals court stated in their well-researched decision that, while the right was indeed an individual one, it was not exempt from "limited, narrowly tailored specific exceptions or restrictions for particular cases that are reasonable and not inconsistent with the right of Americans generally to individually keep and bear their private arms as historically understood in this country." It also concluded that the requirement of due process had been met in the case "albeit likely minimally so." All three judges found the defendant in violation of the statute, but one judge wrote a scathing "special concurrence," protesting the research and conclusions reached by the other two judges, claiming that their finding that the Second Amendment protected an individual right was mere obiter dicta - and not legally binding - because it was unnecessary to the decision. The majority judges responded:

We reject the special concurrence's impassioned criticism of our reaching the issue of whether the Second Amendment's right to keep and bear arms is an individual right. That precise issue was decided by the district court and was briefed and argued by both parties in this court and in the district court. Moreover, in reaching that issue we have only done what the vast majority of other courts faced with similar contentions have done (albeit our resolution of that question is different).

The vast majority have not, as the special concurrence would have us do, simply said it makes no difference whether or not the Second Amendment right to keep and bear arms is an individual right because even if it were an individual right the conviction (or the challenged statute) would be valid. In this case, unless we were to determine the issue of the proper construction of section 922(g)(8) in Emerson's favor (which the special concurrence does not suggest), resolution of this appeal requires us to determine the constitutionality of section 922(g)(8), facially and as applied, under the Second Amendment (as well as under the due process clause and the commerce clause). We have done so on a straightforward basis.

The second case the Chief Justice mentioned was California's Silveira v. Lockyer, which came out shortly after Emerson and that also did an "original understanding" analysis, but one that backed up their flawed Hickman decision. It had to - no three-judge panel can overturn a previous decision. Only an en banc rehearing by the full Court can do so, and the Ninth Circuit denied such a rehearing. That denial is where two of the quotes in the opening of this exceedingly long essay come from.

Now we reach today, and D.C. v. Heller. The city of Washington D.C., a Federal District under control of Congress and most emphatically not a "state," passed what is essentially a complete ban on the possession of functional firearms by its (law-abiding) residents in 1975. Because Washington D.C. is not a state, the Cruikshank and Presser Supreme Court decisions do not have any influence - the Second Amendment applies directly to the city government. A lawsuit was brought against the city under the auspices that the gun ban violated the Second Amendment rights of the citizens of Washington, and the case proceeded all the way to the D.C. Circuit Court of Appeals, considered one of the most important circuits in the Appeals Court system for its precedent-setting.

A three-judge panel voted 2-1 that the right to arms IS an individual one (agreeing with the Fifth Circuit) and that the laws in question DID violate the Second Amendment.

The City appealed to the Supreme Court. Cert. was granted. Oral arguments start in just a few days from now.

And we may finally get an answer to the question: "(L)et's say a liberal government came to power and wanted to ban gun ownership. It would not be able to, because of the Second Amendment, right?"

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